Excerpt:.....on ground that inspecting officer did not offer himself for search first - it was incumbent upon police officer conducting search to make himself available for search before he embarks upon search of accused - prosecution did not make any statement to the effect - in present case said issue was not raised at lower stage and police officer not examined on this point - issue should have been raised at lower court - accused should come out this case at lower level - unavailability of opportunity to cross examine police officer is something which does not prejudice accused at all - lower court's decision justified.
- - to my mind, the argument is not well founded. the supreme court has found in that case that the police officer has possibly deposed that he had complied with all the..........under section 313 of the code, that the said quantity of ganja was planted upon him by any of the police officers who accosted him and conducted the search. the trial court found that the offence committed by the petitioner was fully proved by sufficient evidence. hence, he was convicted of the above mentioned offence and was sentenced to suffer rigorous imprisonment for one month and to pay a fine of rs. 100/- and in default to suffer simple imprisonment for 15 days.3. in the revision application filed against the said order of conviction and sentence, the main argument advanced for the first time in the sessions court (which was the only argument re-agitated before me) was that at the time when the petitioner was accosted and searched, the officer who took the search did not call upon.....

Judgment:

Sharad Manohar, J.

1. The petitioner before me was convicted by the trial Court of offence under section 66(1)(b) of the Bombay Prohibition Act on the ground that he was found to be in possession of 50 gms. of 'Ganja' at the time when he was accosted by the Police. The Police led enough evidence to prove the possession of the said quantity of Ganja with the accused.

2. In defence, all that the accused came out was that he did not have in his possession the said quantity of Ganja. It was not at all his case, either in the case of cross-examination of the prosecution witnesses or during his examination under section 313 of the Code, that the said quantity of Ganja was planted upon him by any of the Police Officers who accosted him and conducted the search. The trial Court found that the offence committed by the petitioner was fully proved by sufficient evidence. Hence, he was convicted of the above mentioned offence and was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 100/- and in default to suffer simple imprisonment for 15 days.

3. In the revision application filed against the said order of conviction and sentence, the main argument advanced for the first time in the Sessions Court (which was the only argument re-agitated before me) was that at the time when the petitioner was accosted and searched, the officer who took the search did not call upon the accused to search himself, to satisfy himself (the accused) that the officer taking search was not having any such contraband article with him at the time of the search. Reliance was placed in this connection on the judgment of the Supreme Court in the case of State of Bihar v. Kapil Singh, : 1969CriLJ279 . That was a case, where the Supreme Court was required to consider whether the Inspector of Police had observed all the formalities required to be observed when searching the house of appellant Deo Singh and while holding that the evidence against the accused was grossly insufficient to bring home conviction against him, the Supreme Court observed as follows :

'The circumstances of the recovery are also doubtful. According to Inspector of Police, Pathak, he observed all the formalities required to be observed when searching the house of Deo Singh. One of the formalities that has to be observed is that the searching officer should give his personal search to the witnesses before entering the premises to be searched and should similarly search the witnesses also in the presence of one another. If the Inspector means that this was done by stating that all formalities were observed he is contradicted by Narsingh Mahto who says that on his arrival, he found the Inspector in the inner courtyard of the house, which means that he had already entered the house without observing the formalities.'

By placing reliance exclusively upon this observation, it was argued that it was incumbent upon the Police Officer conducting the search to make available his own search to the accused before he embarks upon the search of the accused. It was argued that the Police Officer who was examined by the prosecution has not made any statement to the above effect at all and that there was a basic lacuna in the trial, which vitiated the ultimate order of conviction.

The learned Sessions Judge negatived this plea holding that the observation made by the Supreme Court in the above mentioned case was made in an entirely different set of facts and provisions and the requirements of law.

The revision application filed by the petitioner was, therefore, dismissed by the Sessions Court.

4. As stated above, this is the only point urged by Mr. Gangapurwala, the learned Advocate for the petitioner, before me. He once again placed heavy reliance upon the above mentioned judgment of the Supreme Court and particularly the portion of the judgment extracted above and contends that if a Police Officer makes search of any person, who ultimately becomes an accused in the criminal proceeding, it is necessary that he offer himself for search to the said accused or else the evidence given by him in the Court relating to the things found in the search becomes meaningless. In that, the possibility then cannot be ruled out that the Police Officer conducting the search himself planted the contraband article upon the accused.

To my mind, the argument is not well founded. As observed by the learned Sessions Judge and as very frankly conceded by Mr. Gangapurwala, the theory of planting is the brain-child of the learned Advocate for the accused and that too conceived of at the time of the revision application in the Sessions Court. There is no suggestion made to any of the prosecution witnesses that the quantity of Ganja was planted by any of the searching party upon the accused during the search. The accused had not as much as murmured about the said planting in his examination under section 313 of the Code. It is only at the time of the hearing of the revision application in the Sessions Court that the theory of possible planting is thrown in the air by the learned Counsel appearing for the accused in the Sessions Court. To my mind the learned Judge was right in holding that when the Supreme Court made the observation that it is an essential part of the formality of searching that they should make themselves available for search was not a statutory rule being interpreted or laid down by the Supreme Court. The Supreme Court has found in that case that the Police Officer has possibly deposed that he had complied with all the formalities and the Supreme Court found that this statement of the officer was badly contradicted by his own evidence, which showed that all the formalities were not complied with by him. In that case, the theory of planting was not conceived of after the evidence was over. It was the case of the accused right during the course of the evidence itself that he was not in possession of the impugned article and that it was planted upon him by the searching party. The accused had, therefore, come out with the case of planting and even then the prosecution had refrained from leading evidence to rule out the case of planting.

The present position is entirely different. The accused has never come with the case that the quantity of Ganja was planted upon him by any member of the searching party. The prosecution witnesses were never cross-examined on that point. The accused has not come out with any such positive case at any time.

5. Mr. Gangapurwala faintly argued that, the Police Officer who has filed the complaint and who was present at the time of the search was not examined by the prosecution, with the result that accused had no opportunity to cross-examine him with a view to put to him the theory of planting. To my mind, this contention is equally unacceptable. The Police Officer led the evidence of all the necessary witnesses for proving the prosecution case. It is not the rule that all the witnesses connected with the detection of the offence should be examined by the prosecution. If the prosecution case is sufficiently proved by the examination of some of the witnesses, it is the grievance of Mr. Gangapurwala that the accused had no opportunity to cross-examine the officer who filed the complaint and who has himself planted contraband article upon the accused. Point is that if this was the position, the cross-examination of the other witnesses examined by the prosecution would have proceeded on these lines. The accused could have come out with his case at least under section 313. The unavailability of opportunity to cross-examine the officer, who technically filed the complaint, is something by which the accused is not prejudiced at all.

6. Having regard to all these circumstances, I find it impossible to find fault with the judgment of both the courts below.

The petition, therefore, fails. The rule earlier issued is discharged. The accused to surrender to his bail within one week from today.